Our Nation’s Bail System At A Crossroads.
Bail reform presents a historic challenge – and also an opportunity. Bail is historically a tool meant to allow courts to minimize the intrusion on a defendant’s liberty while helping to assure appearance at trial. It is one mechanism available to administer the pretrial process. Yet in courtrooms around the country, judges use the blunt instrument of secured money bail to ensure that certain defendants are detained prior to their trial. Money bail prevents many indigent defendants from leaving jail while their cases are pending. In many jurisdictions, this has led to an indefensible state of affairs: too many people jailed unnecessarily, with their economic status often defining pretrial outcomes.
Money bail is often imposed arbitrarily and can result in unjustified inequalities. When pretrial detention depends on whether someone can afford to pay a cash bond, two otherwise similar pretrial defendants will face vastly different outcomes based merely on their wealth. These disparities can have spiraling consequences since even short periods of pretrial detention can upend a person’s employment, housing, or child custody. Being jailed pretrial can also undercut a defendant’s ability to mount an effective defense. As these outcomes accumulate in individual cases, improper use of money bail can accelerate unnecessarily high rates of incarceration and deepen disparities based on wealth and race throughout the criminal justice system. Detaining unconvicted defendants because they lack the wealth to afford a cash bond also violates the Constitution.
A recent wave of advocacy has created national momentum for fundamentally rethinking how pretrial decision-making operates. Litigation across the country has resulted in the bail systems of several jurisdictions being declared unconstitutional, destabilizing wellestablished practices and focusing the attention of policymakers on the problems resulting from money bail.1 Increasing media attention to the unjust consequences of money bail has intensified scrutiny of existing practice.2 All of this builds on sustained attention from experts and advocacy groups who have long called for fundamental reform of cash bail.3 As policymakers across the political spectrum seek to end the era of mass incarceration,4 reforming pretrial administration has emerged as a critical way to slow down the flow of people into the criminal justice system.
This primer on bail reform seeks to guide policymakers and advocates in identifying reforms and tailoring those reforms to their jurisdiction. In this introductory section, it outlines the basic legal architecture of pretrial decision-making, including constitutional principles that structure how bail may operate. Section II describes some of the critical safeguards that should be in place in jurisdictions that maintain a role for money bail. Where money bail is part of a jurisdiction’s pretrial system, it must be incorporated into a framework that seeks to minimize pretrial detention, ensures that people are not detained because they are too poor to afford a cash bond amount, allows for individualized pretrial determinations, and effectively regulates the commercial bail bond industry.